Lecture 20 Judicial Review
This is the process by which courts are able to determine the lawfulness of executive power. It is concerned with the legality of the decision making process as opposed to the merits of the actual decision. As we have already seen, courts are unlikely to review the lawfulness of an Act of Parliament. They are not however at all hesitant to review the lawfulness of delegated legislation. Where an Act of Parliament gives a minister a the power to make regulations, the minister may be given the power to make such regulations as he sees fit in order to give effect to the purposes of the Act of Parliament. In other words, he must intra vires rather than ultra vires.
The power of a court to review an administrative decision is given to the High Court (QBD). The court does not examine the merits of a decision, so its review is limited to the manner or the procedure by which the decision was reached. This is different from an Appeal process, in which the decision is reviewed and is substituted with a new one. In JR, the court merely looks at HOW the decision was made, whether it was fair, reasonable etc.
Also, since the passage of the HRA, 1998, a further requirement is that executive bodies or agencies must fulfill the requirements of the Human Rights Act in making their decisions. For eg, if the review is made on HR grounds, the applicant has a year to make the application. Ordinarily, applicant has three months.
Please note that this is not an automatic right – an applicant must be obtain leave from the court before he is granted permission to obtain judicial review. In addition to this, other conditions must be met:
- Judicial Review can only be brought in respect of a public matter, not a private one:
See O’Reilly v Mackman (1983) – Judgment of Lord Diplock where it was first held that the where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. Applicants were punished for being part of riots at Hull prison – wanted to bring action against their punishment through an ordinary writ of summoms. Diplocks and HL hold that the action can only come via judicial review. Highly criticized decision.
- Judicial Review can only be brought against a public body
See R v City Panel of Takeovers and Mergers, Ex Parte Datafin (1987) In this case, a privately established organ was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction. Also has a good for the definition of a public body. It does not necessarily have to be one created by statute, one qualifies as a public body if you are performing a function for which, had you not existed, a public body would have had to be created. Compare that to a Jockey Club (Ex Parte Aga Khan – where the Foundation, which owned racehorses, tries to challenge the decision of the Epsom Race holders to ban his horse after traces of a banned substance was found in its urine sample through judicial review. Court holds that JR no available here as RC performs no public function) which the court held performed no public function.
- The issue must be justiciable – i.e. that there are certain decisions that are considered “political” and are therefore outside the courts.
Nottinghamshire County Council v Secretary of State for the Environment (1986) - Nottinghamshire CC v Secretary of State for the Environment (1986) The Labour County Council
challenged the Conservative minister for having set targets for expenditure and thus grant distribution
that discriminated particularly against a small number of authorities, including Nottinghamshire. The
challenge was upheld by the Court of Appeal in a decision that would have overturned the
government’s whole target-based local finance policy, but was overturned when the minister appealed
to the House of Lords, where it was held that spending limits on local councils imposed by ministers is a political question.
Also – ex Parte rees mogg!
One of the issues that are typically held to not be justiciable is the application of the Royal Prerogative. However, it is for the court to decide whether or not an issue is justiciable and no one else. This is one of the key holdings of the GCHQ Case, where it was held for the first time that Prerogative powers are subject to judicial review.
- You must have locus standi to bring a case
This means that you must have interest in the particular matter before you can bring a case:
Sufficient Interest defined by the case R v Inland Revenue, Ex Parte National Federation of Self Employed and Small Businesses (1982) As a matter of general principle I would hold that one taxpayer has no sufficient interest in asking the court to investigate the tax affairs of another taxpayer or to complain that the latter has been under-assessed or over-assessed: indeed, there is a strong public interest that he should not. And this principle applies equally to groups of taxpayers: an aggregate of individuals each of whom has no interest cannot of itself have an interest.
I.e. You can only ask for JR if the act in question affects you personally. No busy bodies…e.g
Schmidt v Home Secretary 1969
BuT you have standing if the Act in Question will harm the whole world R v Secretary of State for Home Affairs, Ex Parte Rees Mogg – this was on the question of whether the Maastricht Treaty could be ratified
Courts typically recognize the rights of groups to challenge the decisions of the courts.
R v Liverpool Corporation Ex Parte Liverpool Taxi Operators Association
- Timeousness – Application must be brought within three months of the decision – R v Secretary of State for the Environment, Ex Parte Ostler
- Exhaustion of Other Remedies; The applicant must have no other remedy under the statute, e.g. the right to appeal – but the right to appeal can be taken away!! By Ouster and Exemption Clauses; What are these?
Exclusion or Ouster Clauses/Also called Conclusive Evidence Clauses by Burnett and Study Guide
Some statutes try to exclude the possibility of judicial review by providing that the decisions of ministers;
· “Shall not Be Questioned”: Anismic v Foreign Compensation Commission (1969) The commission was set up by the Foreign Compensation Act 1950. The commission decided that the claimant company had failed to establish a claim for compensation for the loss of its Egyptian assets following the Suez crisis of 1956. Challenged successfully the decision of the commission using judicial review.
· “Shall be final”: R v Medical Appeal Tribunal, Ex Parte Gilmore (1957) In R v Medical Appeal Tribunal (ex parte Gilmore) [1957] the tribunal’s decision was quashed for error of law even though the statute in question said that the tribunal’s decision ‘shall he final’. Denning LJ said:"I find it very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words.”
Courts have held that such clauses should be interpreted strictly – any form of ambiguity should inure to the benefit of the applicant for JR. So this language may have excluded an Appeal – but they do not exclude judicial review. However, if the language of the statute is unambiguous e.g it says:
- The subordinate legislation shall have effect “as if enacted in this Act”
- The decision… will be “final and conclusive” and cannot be “challenged, appealed against, reviewed, quashed, or called into question by any court of law”. South Asia Firebricks v Non-Metallic Mineral Products
- Final Condition – the action for judicial review must fall into one three grounds for judicial review – namely; These were laid out by judgment of Diplock in the GCHQ case.
- Illegality
- Irrationality
- Procedural Impropriety
The first two categories are sometimes joined under the name “unreasonableness”
Illegality:
- Ultra Vires:
This applies where executive is deemed to be acting ultra vires or outside of one’s lawful powers.
This happens where:-
A public body acts outside of its authority or statutory limit:
R v Richmond upon Thames City Council; Ex Parte MaCarthy and Stone (1992) –a local planning authority levies fees when it has no statutory authority to levy fees.
As a result of the passage of the HRA, A public body may act outside of its authority if is response is considered to be disproportional. R v Chief Constable of Sussex, Ex parte international trader’s Ferry (1999) – too many police people at the scene of a confrontation between live animal exporters and animal rights activists.
- Error of Law:
Where a public authority misinterprets its powers; Perilly v Tower Hamlets Borough Council (1973) – what it needs to take into consideration in respect of the issue of licenses
Or;
Comes to an unreasonable conclusion: Coleen Properties v Minister of Housing (1971)
Note that the distinction between an error of law and an error of fact is sometimes difficult to determine – e.g. in the Anismic case, it was held that if the error of fact was serious enough, it may result in an error of law. Also, public bodies are supposed to interpret laws based on correct facts, so if they incorrectly interpret facts, there may be court intervention to correct this. R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with her two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because whether the applicants had accommodation was a question of fact for the authority to determine.
- Failure to Act – where a statutory body is supposed to take a particular action but does not do
so – remedy for this is to compel the body to act with Mandamus order.
4. Acting n bad faith – basically acting in a deliberately dishonest manner – Cannock Chase District v Kelly (1978) -
5. Using powers improperly – e.g. of this Attorney-General v Fulham Corp 1921 – using powers as non-profit to make money instead. Supposed to open non-profit laundry and operates a commercial laundry rather.
6. Onerous Condition – if it makes a decision that attaches such onerous conditions that it becomes difficult to perform Pyx Granite Co Ltd v Ministry of Housing (1958)
7. Abuse of Discretion – where the illegal act stems from the authority exceeding the powers it has been granted under statute. EG
8. Takes into Account irrelevant considerations – does not take into account irrelevant considerations . Wheeler v Leicester City Council (1985) Wheeler v Leicester City Council (1985) The City Council banned Leicester Rugby Club from using a council-owned pitch, claiming the club had not fully supported the council’s anti-apartheid policy and its opposition to any sporting contacts with South Africa. Peter Wheeler (then club captain, later its chief executive) challenged the council’s decision, was unsuccessful in the Divisional and Appeal Courts, but had it upheld in the House of Lords, who declared the council’s action ‘unreasonable’
See also – unauthorized delegation – gives power to another authority when it is not supposed to) and Fettering Discretion – interprets its mandate in a manner that makes it impossible to act. R v Port of London Authority ex Parte Kynoch
Irrationality
The authority has based its in decision in a manner that is “so unreasonable that no reasonable authority could ever come to it”; or “a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it”.
Associated Provincial Picture House v Wednesbury Corporation (1919)
"Associated Provincial Picture Houses" were granted a licence by the defendant local authority to operate a cinema on condition that no children under 15 were admitted to the cinema on Sundays. The claimants sought a declaration that such a condition was unacceptable, and outside the power of the Wednesbury Corporation to impose. The court held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:
· the corporation, in making that decision, took into account factors that ought not to have been taken into account, or
· the corporation failed to take account factors that ought to have been taken into account, or
· the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories.
Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld.
This is a very high standard to meet. The test is very rarely passed!
Especially if the public body gives reasons.
· Secretary Of State For Education V Tamseside Council (1977)
Secretary of State for Education v Tameside MBC (1977) The newly elected Conservative-controlled
Tameside Council (Greater Manchester) abandoned the former Labour council’s planned
comprehensive reorganisation of the borough’s secondary schools shortly before its scheduled
introduction. When the Labour minister ordered that the reorganisation should proceed, the borough’s challenge was eventually upheld in the House of Lords, who ruled that the LEA’s action had not been unreasonable’.
R v Ministry of Defence, Ex Parte Smith (Can ban homosexuals from UK army – if you give reasons)
NB – nomenclature issues around the term unreasonableness – sometimes applies to other kinds of illegality so be sure that what is being referred to is Wednesbury type unreasonableness
Procedural Impropriety
Two kinds –
- failure to follow the laid rules and procedures under the statute tribunal is supposed to operate under ; or
- Failure to follow the rules of natural justice
What is natural justice?
Rule against bias – nemo iudex/judex in causa sua (no one can act as a judge in their own cause) and the right to a fair hearing (audi alteram partem – listen/consider the other persons point of view)
- Bias
Biases may be caused by financial interest – Dimes v Grand Canal Junction (1852)
Lord Cottenham (LC) held a substantial block of shares in a canal company that brought a case in equity against a landowner
In respect of other kinds of bias (sex, social background, opinions etc) the applicant must show “a real likelihood of bias”. R v Gough – juror realizes that the brother of the man just convicted was his neighbor after the verdict. Verdict not disturbed because there was no real likelihood of bias.
R v Bow Street Metropolitan and Stipendary Magistrate and Others, Ex Parte Pinochet Ugarte – One of the Law Lords in the Pinochet was a director at Amnesty International. Amnesty International had made representations in the case. Circumstances gave rise to a “presumption of bias”.
- Fair Hearing
Leading Case on this is Ridge v Baldwin – a Policeman dismissed at a committee meeting at which he was not given notice off, or was permitted to make representations at. Held to be contrary to natural justice.
Fair hearing has been held to mean a few things.
- Right to be given notification of the hearing – Hardie v City of Edingburgh 2000
- Right to be given reasons for the decision – R v Secretary of State for Home Affairs, Ex parte Doody 1994 – minister added to the period to which the applicants were elgible for parole without telling them why. Or Ex Parte Al Fayed – denial of naturalization application without giving reasons.
- Right to be given an opportunity to respond to the evidence R v General Medical Council ex parte gupta 2001
- No right to an oral hearing – Ridge v Baldwin
- Right to legal representation - Pett v Greyhound Racing Association 1970 – Denning MR
“Its not every man who has the ability to defend himself on his own. He cannot bring out the point in his own favor, or the weakness in the other side. He may be tongue tied, nervous, confused, or wanting in intelligence”.
Two final points –
Judiciary in determining what amounts to a fair hearing, is often anxious to not impose the same standards that would be expected in a court on a tribunal.
There is no common law duty to act fairly – but applicants can rely on a legitimate expectation of fairness where:
- They have been led to believe that a particular procedure would apply; or
- The policy guidelines of the tribunal or of that decision gives rise to the expectation of some level of fairness
Remedies for Judicial Review
- Quashing Orders – nullifies decision made by the authority. R v electricity commissioners, ex parte London electricity joint committee
- Prohibition Orders – prevents a body from making a decision that may be quashed or destroyed
- Mandatory – Compels a body to take a particular action
- Declarations – statements/clarifications of the legal position between the parties
- Injunctions – orders that can prevent an administrative law body from acting unlawfully M v Home Office
- Damages – where had the party brought an action in private law in respect of the same matter, he/she could have received damages, damages are also available
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